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A High Court judge has warned of ‘draconian’ costs penalties should two parties in litigation continue to refuse to cooperate.

The Honourable Mr Justice Fraser said both sides in Bates & Ors v Post Office Ltd had rebuffed efforts to manage the case in a cost-effective and efficient way.

At a case management conference, Fraser outlined poor behaviour exhibited so far in a case in which 500 mostly sub-postmasters are pursuing action against the Post Office branch operator. The claimant group is seeking damages related to the introduction of the Horizon electronic system around 17 years ago, which allegedly caused financial distress and in some cases bankruptcy.

The first claim was issued in April 2016. Fraser listed some of the issues already reported during the group litigation:

Failing to respond to directions for two months

Failing to even consider e-disclosure questionnaires

Failing to lodge required documents with the court

Refusing to disclose obviously relevant documents

Threatening ‘pointless’ interlocutory skirmishes.

The judge said: ‘Such behaviour simply does not begin to qualify as either cost-effective, efficient, or being in accordance with the over-riding objective. A fundamental change of attitude by the legal advisers involved in this group litigation is required. A failure to heed this warning will result in draconian costs orders.’

The court heard last month of considerable difficulty in trying to establish a timetable for the litigation. At the case management conference, the claimants sought a substantive hearing for October 2018, while the defendants argued the case could be managed for another entire year without any substantive hearing being fixed. Under this proposal, the hearing would not happen until at least 2019.

Fraser noted that to describe this approach as ‘leisurely, dilatory and unacceptable in the modern judicial system would be a considerable understatement’.

The day after trial was ordered for November 2018, leading counsel for the defendant wrote to ask that it be moved as he already had a commitment at the Companies Court. But the judge suggested it was a ‘clear case of the tail wagging the dog’ if clerks were allowed to dictate hearing dates, and he said there was reasonable notice to arrange for a replacement counsel.

Fraser added: ‘Fixing hearings in this group litigation around the diaries of busy counsel, rather than their fixing their diaries around this case, is in my judgment fundamentally the wrong approach.’

When sitting as a Tribunal Judge I asked HMRC to provide details of available dates in the next six months. I was aware they were keen to delay the case and there had already been considerable delay in complying with previous directions. I was not surprised when they produced a list showing the solicitor, HMRC's fraud officer and barrister were at no time all available in the following six months. As a result I said they would have to manage and fixed the hearing anyway. I was not at all surprised when they all turned up without apparently any difficulty.

Counsel should have had his dates available at the hearing and if he got it wrong he should have to meet any additional costs incurred by his clients but seeing it is a year away I'm sure something can be sorted out.

I can remember a complex professional negligence trial in the high court, admittedly a few years ago, when near the end of the second week the deputy high court judge announced that he wouldn't be able to sit the following week because he has rented a house on the course at Sandwich in order to watch the Open. I wonder if much has changed since?

We are routinely waiting 9-12months from issue of proceedings to the first CMC due to delays in court listing.
In a recent case every "routine" direction had been completed and all that was left was the trial before the court got round to having a budgeting hearing!

When fixing trial dates, court staff should surely work with Counsel's clerks to agree a suitable date, and not impose one. If alternative Counsel have to be briefed because of a clash, this must add a lot to the costs incurred by the parties.

BTW, just tell me what the difference is between all other kinds of litigation (and many conspirators in Crime for example), and GLO's?

One form, one case. One set of directions. Why 'an Application Notice' for Orders? Mags dont need them, Crown Courts dont need them. Only (if that), a Sect. 9 Statement and any exhibits to the Duty Judge for the day.

There is nothing wrong with running a Civ Lit case in the same way as a Mags case with or without the 1 day or 4 week trial window.

The only reason we have a difference in approach is that historically the High Court was seen as some kind of 'Rolls Royce' 'Forum'. The County Court Act was supposed to open up justice for many. It didn't really and was hijacked from the beginning by low level debt collection matters.

I really do not know why it has always been necessary to have one form for proceedings received at court when the Judge is sitting and one just sitting on the toilet. That smacks of childishness Public School dorm-antics.

One form one case, as with Crime.

Fair enough, is it not?

Sir Peter Middleton when he wrote his report at the same time as Woolf, envisaged a much more slimmed down proactive, system which could be used at base by all and heavy investment in IT (including databases to assist a [potential] litigant in what they could and could not 'plead' (to use old terminology Woolf' would not like), and procedure.

We simply cannot go on inventing Med Neg / PI / Car Hire Claims whilst cutting out all the other litigants who need the service of the Courts in a race to the bottom (and pockets of the Insurance Paymasters of the Law Society).

One Claim Form (as one Information), screened by the Clerk (as with Criminal case at the Mags). One set of directions. No disclosure and then Trial.

"Fraser added: ‘Fixing hearings in this group litigation around the diaries of busy counsel, rather than their fixing their diaries around this case, is in my judgment fundamentally the wrong approach.’"

And here is the true judicial/MOJ position when dealing with listings. We list it when and where we want regardless of the parties involved. As Anon 08:40 GMT has pointed out, the judiciary want us to say if we cannot make a hearing but then they just ignore everything. Hypocrisy at it's finest.

Anon 09.17 GMT 15 November 2017
I have read and re-read your post and whilst you say that you have "done a lot of it" (Civil Litigation that is), I would hazard a guess that either you actually haven't or it was many many generations ago. I have no earthly clue what you are going on about. To liken GLO litigation with the end result being a 4 week High Court Trial to a somewhat complex hearing in the Magistrates Court shows that you are living in a fantasy world.

What the Court needs is less hostility. More understanding of and narrowing down of issues early on by correspondence and disclosure then voluntarily based on this narrowing down.

I have never understood the Public School Charades -Fest, that is Civil Litigation (even though I have done a lot of it and read a lot of practitioners texts in it). In a fairly complicated Mags case, to compare, for example, one looks at prelim. / primary disclosure, works out from this what the issues are, asks for further disclosure or clarification of the charge / information or in similar Public School - Civil Litigation parlance what would be the Claim Form / 'Pleadings' (OK Harry Woolf I am using the old parlance there), which leaves either two options, one goes for complete dismissal (say for abuse), or one drafts a skeleton there and then for further disclosure and / or third party disclosure, and then gets the case on for trial.

I can understand the need for statements to be prepared prior to the skeleton of course.

Orders can be dealt with by Court Staff initially making such and on objection, forwarding letters / comments (with attachments) to the sitting judge assigned to that purpose for that day - as per the Crown Court.

I blame the 'adversarial' dorm-like philosophy that has built up for the delays and very poor quality (D) DJ's that were poor quality Barristers in practice and in not a few cases, probably need to be pulled mandrake - style from their offices to make way for more practical 'litigators' to take their place.

Just seems the Judge was getting his own back on Leading Counsel who seem to be "up themselves" on this claim. I suspect that had both Counsel and their instructing solicitors (for both sides) not ignored most of the Directions the Judge may have been more sympathetic.

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